National Consumer Disputes Redressal
M/S Malabar Motors vs K. V. Jayarajan on 5 September, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.2741 OF 2013 Alongwith I.A. No. 4686 of 2013 for Stay and I. A. No. 4687 of 2013 for Addl. Documents (From order dated 24.04.2013 in First Appeal No.595 of 2012 of Kerala State Consumer Disputes Redressal Commission, Vazhuthacaud, Thiruvananthapuram) M/s Malabar Motors VI/194 Vishal Complex Mathura Road Palakkad-678001, Kerala .... Petitioner Versus 1. K. V. Jayarajan S/o Velayuden Kizhakkekara House Kumaranallur Palakkad, Kerala 2. M/s Escorts Ltd. Customer Service Division (Agri Machinery Marketing Division) Plot No. 115, Sector-24. Fardiabad -121005 ...Respondents BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Mr. Jogy Scaria, Advocate Pronounced on: 5th September, 2013 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Being aggrieved by order dated 24.4.2013, passed by Kerala State Consumer Disputes Redressal Commission, Vazhuthacaud, Thiruvananthapuram (for short, State Commission), Petitioner/O.P. No. 1 has filed this revision.
2. Brief facts are that Respondent No.1/Complainant purchased powertrac 445 tractor with compressor manufactured by Respondent No.2/O.P.No.2 from petitioner on 16.02.2007 which was delivered to respondent no.1 on 23.2.2007. Within a short span of three months mechanical problem started leading to the break-down of the tractor on 12.05.07. The same was informed to the petitioner and tractor was taken to them for necessary repairs. It is further alleged that tractor was delivered back to respondent no.1 on 16.05.07 stating that defect was to the gear box and necessary repairs have been done and no further complaints would arise. But again on 24.08.07 the vehicle showed the same trouble in an aggravated form and same was again entrusted to the petitioner. Tractor was delivered back on 27/08/07 on the pretext that all the repairs have been done. Again on 20/10/07 due to the same trouble the vehicle broke down again and the vehicle was entrusted to petitioner. Again it was delivered back on 23/10/07. On 3/12/07 the tractor again broke down. On 7/12/07 it was delivered back by the petitioner after necessary repair works. Petitioner assured respondent no.1 that no further complaint will arise. But on 8/12/07 the vehicle again showed the same trouble and once again it was entrusted to the petitioner. It is further stated that the vehicle is now in the custody of the petitioner. It is also alleged that repeated troubles to the vehicle is the result of the manufacturing defect. Hence, respondent no.1 prayed that petitioner and respondent no.2 be directed to supply a brand new tractor replacing the defective one and to award compensation of Rs.2,00,000/- (Rupees Two lac only) with 12% interest till realization.
3. Petitioner in its written statement has taken the plea that respondent no.2 is the manufacturer of the tractor and petitioner is only the seller being authorized dealer of respondent no. 2. Petitioner has pleaded that respondent no. 2 has filed a detailed reply touching all the factual as well as legal aspects and petitioner do not have any divergent interest in this regard against respondent no. 2. Therefore, petitioner is also adopting all the contentions raised by respondent no.2 on this issue.
4. As per reply of respondent no. 2 the defects if any was caused only because of the reckless and careless use of the tractor without following the instructions specifically stated in the manual. The defects in the gear box would be caused due to wrong gear selection, use of over-size implements and lifting of over load. Further, whenever respondent no. 1 brought the tractor for routine service all these defects were fully rectified to his full and final satisfaction. The routine defects which were brought to the notice, were fully attended by the technician of respondent no.2 on 12/05/07, 24/08/07 and 20/10/07. Respondent No.1 has signed the job card satisfying himself by checking the tractor. The defects in the tractor is not a manufacturing defect. It is further stated that there is high probability that same occurred due to the mishandling and improper use of tractor. Respondent no.1 again reported complaint in the tractor on 3/12/07. It was checked by the experts of petitioner as well as respondent no.2 and delivered back in good condition. Again, the tractor was brought on 18/12/07 and all the defects were fully rectified on 23/12/07. According to respondent no.2, respondent no.1 was not taking delivery of the tractor though petitioner has given so many messages to him. Hence the complaint is liable to be dismissed.
5. District Consumer Disputes Redressal Forum, Palakkad, Kerala (for short,District Forum), vide order dated 31.12.2009 allowed the complaint and directed the petitioner and respondent no.2 to pay a sum of Rs. 5,52,000/- being cost of the vehicle alongwith Rs. 50,000/- as compensation.
6. Being aggrieved by the order of District Forum, petitioner as well as respondent no.2 filed separate appeals. State Commission, vide its order dated 31.1.2011 remanded back the matter.
7. After remand, the District Forum, vide order dated 31.3.2012, partly allowed the complaint and directed the petitioner and respondent no. 2 jointly and severally to pay to respondent no.1 an amount of Rs.50,000/-(Rupees Fifty Thousand Only) as compensation and Rs.2,000/-(Rupees Two Thousand Only) as cost of the proceedings.
8. Order dated 31.3.2012 of the District Forum was not challenged by the petitioner as well as by respondent no.2.
9. However, respondent no.1 filed an appeal before the State Commission challenging order dated 31.3.2012 of the District Forum for enhancement of the award.
10. State Commission, vide impugned order allowed the appeal of respondent no.1 and directed the petitioner and respondent no.2 to return the cost of vehicle with 9% interest and compensation of Rs.10,000/- and cost of Rs.2,000/-.
11. Hence, this revision.
12. We have heard the learned counsel for the petitioner and gone through the record.
13. It has been contended by the learned counsel for the petitioner that respondent no.1 has failed to prove the alleged inherent manufacturing defect since no expert evidence has been placed on record. Moreover, defects alleged by the respondent no.1 were all rectified and satisfactory report was countersigned by the respondent no. 1. Further, subsequent to filing of the complaint, respondent no. 1 without intimating the District Forum, has sold the tractor to Mr. Natesan and as such consumer complaint is not maintainable.
14. District Forum, in its order held;
All these job cards shows that the main complaint is with respect to gear box. Opposite parties repeatedly states that there is no manufacturing defect as alleged by the complainant. At this juncture it is pertinent to note that the relevant portion of the reply notice issued by 1st opposite party to the complainant which is marked as Ext. A11.
As regarding the averments contained in para 3, it is true that there was some manufacturing defects to the tractors and those were rectified by the manufacturers technicians.
So defect to some extent is admitted by opposite part No. 1. The documents on record i.e., Ext. A1 to A3 shows that the vehicle was brought for repairs for one and the same complaint. It shows that opposite parties failed to rectify the complaint of gear box.
15. The State Commission, while allowing appeal for enhancement vide its impugned order observed;
On appraisal of the arguments made by the counsels and going through the evidence on record, it is very clear that the tractor was defective from the 3rd month of purchase. It is also evidenced by the documents produced on record that the defects were brought to the notice of the respondent and it was rectified each and every time. It is pertinent to note that on 18/12/2007 Exbt.A5 as per the job card the vehicle was not taken back by the complainant. It is clear from the letter dated 08/01/2008 issued by the first opposite party to the complainant that the vehicle was not taken back by the appellant. Under the circumstances, the appointment of the expert Commissioner could not be taken out by the complainant as the vehicle was in the custody of the respondent.
The adverse inference can be taken in this case as the burden of proof and the custody of the vehicle shifted to the side of opposite party. It is a relevant factor to be considered and only the course open upon to us is to take adverse inference that the vehicle is in the custody of opposite party. Now coming to the statement of sale of the vehicle to one Mr. Natesan has come out in the proof affidavit filed by the opposite parties.
No such contention was raised by the opposite parties at the time filing version. The sale agreement was a photocopy. It was deposed by in evidence by DW1 that he had entered into the agreement on 3rd September whereas the agreement executed only on 23rd September. The agreement was signed by 2 witnesses but they were not examined to prove the case of the opposite party. It is also to be pointed out that original of the agreement was not produced by the opposite party and this cannot be taken into evidence. The respondent had not proved in evidence that the vehicle was returned to the appellant nor the sale of the tractor proved properly. We are of the considered view that the complainant was not taken delivery of the vehicle and he is to be compensated appropriately. Placing reliance on the decision of the Honble Supreme Court in Anantharam. C.S Vs. Fiat India Limited and Others 2011(1) SC (460) the Court directed the total amount with interest, compensation and cost. Under the facts and circumstances of the case we are inclined to modify the order passed by the Forum below and direct the respondent/ opposite parties jointly and severally to pay the cost of vehicle with compensation and cost.
In the result, appeal is allowed and the respondent 1 and 2 are directed to return the cost of vehicle with 9% interest and compensation of Rs.10,000/-and cost of Rs.2,000/-. Non-compliance of the order will entitle the appellant for interest @ 12% per annum from the date of the order till payment.
16. Petitioner has nowhere taken such plea in its written statement that respondent no.1 has sold the tractor in question to third party. This plea of the petitioner at revision stage cannot be looked into at all. It is not in dispute that tractor in question was sent for repairs for a number of times to the petitioner, as defects were there. Moreover, after alleged repairs the tractor in question is lying with the petitioner
17. It is well settled that under Section 21 (b) of the Act, scope of revisional jurisdiction is very limited. This Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
18. Thus, we hold that in the present case there is no illegality or material irregularity on the part of the State Commission while passing the impugned order. Thus, there is no legal merit in this petition and same is accordingly dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only)
19. Petitioner is directed to deposit the cost by way of demand draft in the name of Consumer Legal Aid Account of this Commission, within four weeks from today. In case, petitioner, fails to deposit the cost within prescribed period, then it shall also be liable to pay interest @ 9% p.a. till its realization.
20. List on 11th October,2013, for compliance.
...............J ..J (V.B. GUPTA) PRESIDING MEMBER .. (REKHA GUPTA) MEMBER SSB